McConnell questions legality of secret party ballot

Steamboat Springs  Former U.S. congressional candidate and Steamboat Springs resident Bob McConnell is challenging the legality of a vacancy committee’s Jan. 3 secret ballot that gave Hayden Republican Jean White a seat in the state Senate.

In a mass e-mail sent Sunday, McConnell said committee members’ votes at the Moffat County Courthouse should have been cast publicly under Colorado open meetings law because they were appointing someone to a public position.

McConnell said Monday that he’s not planning any legal action related to the ballot process, but his e-mail strongly left the door open to that possibility.

Two lawyers gave different reactions to his assertions Monday.

Attorney Chris Beall, who provides legal counsel to the Steamboat Pilot & Today and the Colorado Press Association, said McConnell’s arguments could have “some persuasive force” in a courtroom.

“There is no case that establishes whether a partisan vacancy committee is subject to open meetings law,” Beall said. “So it’s an open question.”

Not according to Ryan Call, an election law attorney who represents the Colorado Republican Party and works for the law firm of Hale Westfall in Denver. Call agreed that there is no specific case law on the matter but said cases on similar issues date to 1903 in Colorado and have made it as far as the U.S. Supreme Court.

“Every few years or so, someone raises the question as to whether political party organizations … are subject to the open meetings law, and the answer is very clearly ‘no,’” Call said. “These folks who are casting votes in vacancy committees are not doing so in representative capacities. … It’s not a delegation of authority in the same way you might see in open meetings law.”

Call attended the Jan. 3 meeting in Craig in which the state Senate District 8 vacancy committee selected Jean White to replace her husband, former state Sen. Al White, in the state Legislature. The selection required five rounds of voting to reach a majority of the committee, which included the district’s executive officers and Republican Party chairpersons from counties in its Northwest Colorado boundaries.

Seven members of the nine-member committee voted. Jean White, an executive officer for the district, recused herself. Eagle County Republican Party Chairman Randy Milhoan was hospitalized and unable to vote.

Jean White could not be reached late Monday.

McConnell was one of six candidates vying to complete Al White’s term. Al White left his seat to become executive director of the Colorado Tourism Office.

Vacancy committee members have released the tally for each candidate in each round but have not specified which members cast which votes.

McConnell said he’s “just raising the question” about whether the committee violated open meetings law.

“I’m not in this to undo what was done,” McConnell said Monday. “But I think we need to fix the process. I’m putting the Republican Party on notice that a bunch of us are upset about that.”

Vacancy committee Chair­man Phil Vaughan, of Gar­field County, said the state Repub­li­can Party specifies the use of secret ballots for vacancy appointments.

“That’s very clear in the Colorado Republican bylaws,” he said.

McConnell ran for Congress as a Republican last year but lost in the primary in August to Cortez businessman and state legislator Scott Tipton, who went on to defeat incumbent Democrat John Salazar and win a seat in the U.S. House of Representatives.

When Al White announced his departure from the state Senate, McConnell threw his hat in the ring for the seat. Shortly after the seat went to Jean White, McConnell announced his departure from the Republican Party, also in a mass e-mail.

He said he’s now registered as unaffiliated.

McConnell expressed how he felt about the vacancy process in Sunday’s e-mail.

“As we saw recently in the dog and pony show that was the SD 8 vacancy committee, the secret ballot protects good old boys from accountability and allows them to perpetuate the back door deals that have nearly destroyed the Colorado GOP and indeed, this country,” McConnell wrote.

Legal questions

Beall said the primary question is not whether secret ballots are permissible.

“The real question is whether a vacancy committee is a body that is subject to open meetings law,” Beall said.

Colorado’s Sunshine Law imposes strict regulations on public and private entities that have been delegated a governmental decision-making function.

Beall said the distinction lies in whether the vacancy process constituted a representative body seeking to enact the will of its constituents.

“It’s unclear to me whether a vacancy committee functions in that way — whether committee members are representatives or direct voters,” he said.

Call said the state Republican Party is a private association.

He compared a vacancy appointment to votes made at party caucuses, assemblies and other such functions.

“That is not a grant of government authority within the open meetings law,” he said.

“The Republican Party has a long tradition of preserving and protecting the right of secret ballots,” Call continued. “To take a position that the party has to conduct all of its meetings and procedures in open meetings … would really undermine the autonomy of individual voters selecting their choice.”

McConnell sta­ted a potential for litigation in the Sun­day e-mail after alleging that Colo­rado politicians have “hidden behind” the Re­pub­lican Party’s bylaws.

“If this bylaw is not changed, we will take the party to court under the state open meetings law, and we will win,” he wrote.

Comments

Jeezz, give it up Bob. Look, the committee should respect the electorate's decision.
1. Al White left.
2. If we could replace Al White with a clone of Al White the voters would be happy. But
we can't so...
3. The committee should choose someone like Al White. Jean White, not because she is his wife, is like Al White.
4. Bob McConnell (although he may have some good ideas) is not like Al White and there is next to no chance the people who voted for Al White would elect Bob McConnell.
5. How would you like it if a Democrat were appointed to Al White's seat. Not so much, I expect.
6. The voters will ultimately decide whether Jean White (if she chooses to run), Bob McConnell, or someone else will represent them in the next election.

Seems to me to be a lot closer to how state law allows the political parties to put nominees of their choice onto the ballot than a meeting of public officials. The vacancy committee was not created by an open process, it was the local Republican party that determined who was on the committee so how could the committee be considered public representatives subject to the open meetings law?

Also, the irony of the situation is even if Bob were to win his case then he'd be ineligible to apply for the seat because he is no longer a registered Republican.

Have to admire Bob's energy and convictions. An area where I think government is vulnerable is how local city governments manage their enterprise (water/sewer and for OC, electrical) government owned businesses and how much the enterprises pay for overhead for space and administrative services (such as payroll) and thus subsidize the government's general fund. Thus, the water/sewer customers are being overcharged and their excess fees are going to the general fund in violation of the TABOR amendment.

Look at what the county charged the Building dept (an enterprise since it does
building permitting for SB, OC and Yampa) for administrative services.

Oak Creek electrical enterprise fund is paying part of a road grader and how a road grader is used for electrical work is beyond me, especially when their lines are on top of poles. And a whole lot to Public Works for labor despite none of them being licensed electricians and a contractor is called in to do any work on the lines or transformers.

And that doesn't even touch the deeper question of whether government bloated administrative costs are more than what any business would ever consider paying. So why pay the controlling government rates for rent, HR, payroll and so on when any private sector business would find cheaper rent and contract those services out to other private companies at a far lower rate. For instance, it looks like it costs the government enterprises between twice and five times as much to generate a bill and accept payment than it does YVEA to process bills.

That the governments have their hands in the pockets of their enterprises is obvious by how water/sewer rates are increased when general tax receipts are down.

Work to get these enterprises out of reach of local governments and make them into districts owned by their customers like YVEA or Mt Werner Water.

There are two issues here:
1. Was this legal?
The Open Meetings Act applies to, "any public or private entity to which the state, or an official thereof, has delegated a governmental decision-making function." The statutes delegate the ability to fill vacancies to vacancy committees like this one, so it looks to me like the Open Meetings Act would apply. Also, the statute that delegates this power provides that the vacancy is to be filled in this way, "The vacancy committee, by a majority vote of its members present and voting at a meeting called for that purpose and open to the public."
It seems to me pretty clear that the procedure used was not legal.

(And more importantly) GOP, would a little transparency kill you?
These kinds of back-room proceedings do not inspire confidence.